[games_access] games_access Digest, Vol 101, Issue 27

[Barrie Ellis]

(see below)

I'm always quite willing to agree to disagree, and I'll always do my best to respect other people's differing views.

I've never been accused of histrionics before, which may be a mix of you not knowing me Scott, and me not expressing myself very well (not a unique occurrence). It's hard to get the true meaning of words written when you don't know the individual that wrote them (we don't know each other), nor the circumstances that they wrote them under.

What I was trying to draw was that it's not just about video games. For some people, as mentioned already, it's a right to play issue... http://switchgaming.blogspot.co.uk/2011/05/article-31-right-to-play.html
Article 31
1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.

2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.


For some people the lack of access in the games they are aware of, and the equipment available to them, means that they have never played, and may never play (where our reach is weak). Link this to the importance of access to virtual worlds (and what they can bring, especially in the future) - and I think it's a very big issue for some, and not as trivial as it may appear. No not as violent as other causes, but I see it as, at least for some, a massively important thing. A massive frustration. And massively unfair for many. You may think I have dangerous, malformed and destructive ideas. I'm sorry but I really don't. I've not been aware of harming the movement to be honest, but a bit of healthy discussion seems a good thing. So long as it can be kept with a level of respect and courtesy.

Barrie






From: Ian Hamilton 
Sent: Tuesday, June 26, 2012 8:21 AM
To: puckett101 at yahoo.com ; games_access at igda.org 
Cc: mark at ablegamers.com 
Subject: Re: [games_access] games_access Digest, Vol 101, Issue 27


Aha, cultural differences, now that's a valid reason to agree to disagree! 




So in that case a bit more about how things are here, purely for informational purposes (esp. for other UNCRPD-bound countries, I know there are people from Greece and Germany at least on the list), and not as an illustration of how it should work in the US.




We don't have anywhere near as litigious a culture. Although it's more than it used to be, the no-win-fee adverts are restricted solely to personal injury claims, with a small sideline in compensation for miss-sold payment protection insurance, a specific very well publicised legal failing by mortgage lenders.




Again using web accessibility as an example as that has a bit more history to draw on, legislation that affected web access was first passed here in 1995 (the DDA, roughly equivalent in scope and intent to the ADA). In the 17 years that have passed the number of cases that have made it all the way through the courts to prosecution has been zero. I imagine from what you've indicated that that is quite a different story to what happened with the ADA in the USA. 




There have been plenty of threats, certainly in the early days of when I was at the BBC across their hundreds of sites & games they received threats of legal action on an almost weekly basis (since greatly reduced due to the good accessibility people they have there), but the solution has been for organisations simply to hold their hands up and fix the problems, roughly the equivalent of when the Dead Space developers released a control remapping patch. 




Occasionally organisations still refuse and things are taken further, but always settle out of court, in the same way as the recent Disney case in the USA. Certainly though no court in the land would be interesting in hearing a case in which negotiation between the claimant/defendant had already taken place and failed before legal action commenced, I've been through the process myself (not related to accessibility) and you can't just slap a summons on somone.




Since further legislation was introduced in 2010 to come in line with the newly ratified UNCRPD and extend rights to cover all types of discrimination across all industries (with a couple of obvious exceptions, such as sport), the number of cases that have been brought against the games industry has been zero. 




Again, I imagine that would be a different story in the USA, which I suppose helps to explain this, a map of the countries that have ratified the UNCRPD (all the ones in red and blue) - http://www.un.org/disabilities/documents/maps/enablemap.jpg




As you can see although the USA is part of the minority that haven't ratified, it is a signatory, which means it at least agrees with it in principle, agrees not to pass any legislation that contravenes the principles of it, and is looking into how ratification & legislation might be possible. 




The thing with the UNCRPD is that it is pretty light on specifics, it's just overarching principles, general rights of equal access, and it's then down to individual countries to pass legislation that goes into the details, allowing them to take cultural differences into account. 




Although of course on that note I'll have to completely bow to your experience with and knowledge of how things work in your own culture, I'm certainly finding it an interesting and enlightening discussion, and hopefully others are too.




Ian



--------------------------------------------------------------------------------
Date: Mon, 25 Jun 2012 21:29:16 -0700
From: puckett101 at yahoo.com
Subject: Re: games_access Digest, Vol 101, Issue 27
To: i_h at hotmail.com; games_access at igda.org
CC: steve at ablegamers.com; mark at ablegamers.com


Replying to Barrie and Ian's emails, in that order.


First.


Barrie, your comparison is, at best, inaccurate and trivializing another essential struggle in human history. The desire for accessible entertainment is nothing similar to an entire gender trying to obtain the legal right to have a say in who is elected and therefore able to pass legislation affecting that gender. In terms of disability rights and advocacy, the closest equivalent struggle would be trying to gain access to government buildings like courthouses without having to suffer the indignity of being carried up several flights of stairs or having to crawl up those stairs (like George Lane in 2004; more info here: http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2004/01/offramp.html). Likewise, the struggle to not be permanently institutionalized due to disability is similar to civil rights and suffrage.


But we aren't talking about that. We're talking about video games, not people being forced to crawl up flights of stairs while the judge hearing their case watches and laughs at them. We're talking about entertainment, and while developers can and should do better with accessibility, drawing histrionic and fundamentally inaccurate comparisons between accessibility in games and struggles for basic access to essential elements of citizenship that were denied for centuries and are still problems today weakens the argument for accessibility in gaming because it invites exactly this sort of criticism. Instead of creating an environment in which other groups can support our advocacy for greater access to entertainment because it's a reasonable goal, such comparisons actively create conflict because there is a vast difference between people who were beaten and killed trying to obtain a basic, fundamental right and the desire of another group to have greater access to a form of entertainment.


In short, please stop drawing these comparisons. It doesn't help your case and, in fact, actually hurts it because it shows a clear misunderstanding of the struggles that people went through and are still going through in trying to achieve what amounts to full citizenship.


Second.


With that said.


Ian, thank you for your reasonable and sensible explanation of the legislation passed in other countries. It was both thoughtful and informative, and I appreciate you taking the time to write up that assessment. I wish that had been my introduction to the discussion because that actually made sense, explained the issues at hand and so forth.


However, there appear to be a number of significant differences between implementing such things in the UK and the US (and if you'd like to snicker about the political climate in the US, here is the perfect place to do so and I wouldn't hold it against you at all, although I usually just shake my head woefully at the state of things).


First and foremost is that there appears to be significantly more litigation in the US. Frankly, it's practically an industry here with ads on TV for class action suits about medication and such. Living in such a litigious environment means I see things in a very different way; in your description, it sounds as though the UK makes filing suit more difficult. If that's true, it's both a benefit and drawback because it would both protect developers from more frivolous litigation and also make it harder to bring a legitimate case before the court.


This is not true in the US. In the US, pretty much anyone can file suit against anyone else at any time and for any reason, regardless of how frivolous and meritless the claim may be. Even if that claim is dismissed, the defendant still incurs legal fees and loses time due to dealing with the suit. As I mentioned in my previous mail, it is often difficult to recover court costs and legal fees from plaintiffs in such a matter, but that doesn't mean that the money isn't spent. This is the problem with a case like Stern Vs. Sony Online; although it was a remarkably novel interpretation of a public accommodation, Sony still had to defend against it. It is unlikely that Sony would be able to recover court costs from the plaintiff, and there's also the public relations resulting from pursuing recovery against a disabled person. Now, Sony is big enough that it can take that hit. Despite Sony's recent troubles, dealing with a lawsuit like that is a trivial matter for an organization as large as Sony.


The problem arises when that lawsuit becomes 100, 1,000, or more, or it becomes a number of class action suits because someone who meets a government standard for a disability demands an accommodation that may not be technically possible, and a reasonable accommodation is subject to interpretation (everyone's definition of reasonable is different - I think Singularity should be castigated for failing to include subtitles and that MLB The Show should be lauded for somehow managing to include subtitles for a game which is wholly dynamic and situational, meaning that one situation may occur once and never again in a player's experience with the title). This may not be a concern that you have in the UK, but it's a very real concern in the US, and we have already seen it happen without any legislation mandating such an accommodation. That's where the chilling effect that I mentioned comes from. Perhaps in the UK, things are different, but legislation mandating such accommodations in games in the US would result in a non-trivial number of lawsuits being filed. We have a lot of lawyers here, and many of them need to pay off student loans, and I don't think there's a shortage of lawyers who would try to make a novel argument on the off chance that they get a judge to establish a career-making precedent (and loan-payoff payday). And frankly, I don't think we have any shortage of people willing to be a plaintiff in such a matter.


In short, this is a very real and pressing concern, and even laws and regulations which provide some sort of safe harbor provision don't prevent such litigation.


This is the inherent problem with any approach to any issue which assumes that one size fits all. Such regulation and oversight does not - and cannot - take regional variations into account. It can't address cultures, nor can (or should) it supersede local laws. This may sound strange coming from an American, but I do not believe that everyone has to do the same thing or follow the same laws or adhere to the same ideologies. While I believe everyone should be able to live free of fear or harm based on their gender or orientation or ability and so forth, that does not mean that I know - nor do I think I know - the best way to achieve that goal on a global level, nor am I arrogant enough to think that I do.


What I do know is my country, and I know that implementing legislation mandating accessibility in video games here will open the floodgates of litigation because this is what happens here. I don't think that a day goes by that I don't see an ad on TV seeking plaintiffs for class actions related to mesothelioma, SSRIs, birth control medication, anti-inflammatory medication, unfair cell phone billing practices, credit card charges and so forth. And it isn't just one ad - it's several, and it's not uncommon for me to see the same one twice. And that's ignoring the local and regional law firms which specialize in personal injury cases, and also advertise for clients. It sounds like the UK doesn't have this problem - or doesn't have it to this degree - and while that may not prove my point about one approach not being suitable for all cases or examples, it certainly supports it.



So perhaps this will work just fine for the UK. Perhaps there's nothing in it that would conflict with any laws in any of the other countries willing to put that legislation in place. That's fantastic. However, it would be a pretty significant problem here due to the litigious climate, the number of publishers and developers based in the US, and the large population of disabled people (the US census calculates that approximately 20% of Americans have some form of disability, and 10% - which is about 31 million people, or about half the population of the UK - have a severe disability).


So let's run some ballpark numbers. Let's assume, purely for sake of argument, that half the population of the UK was significantly disabled. That would obviously compel a need for legislation protecting those folks. Let's assume that 1% of those people were litigious - we're down to a hair over 300,000 potential plaintiffs. If we further assume that only 1% of those people could file a suit with merit that was not dismissed, we're still looking at developers defending over 3,000 separate lawsuits, assuming they aren't bundled into a class (and that's a little small for a class, completely independent of whether the disability accommodation at issue would warrant establishing a class).


I'm pretty sure that EA and Activision would both have difficulty defending 3,000 lawsuits, and as two of the largest publishers, they would be named as defendants in most of them. And that's just the lawsuits with merit - that doesn't include all the motions to dismiss that would be necessary for the meritless claims.


I'm sure we can agree that this is a non-trivial problem. And really, that's what we're looking at in the US. That threat would shutter a lot of developers. It would mean that smaller developers wouldn't bother with making games - they'd go do something else.


And the end result? The games we would get would, in fact, have homogenized gameplay that had survived lawsuits because developers would know that it's safe, that they're protected by precedent, that the lawyer who would inevitably wind up overseeing project development would approve it. Oh, what a brave new world, that has such games in it, etc. etc.


That's the future that such legislation would inevitably lead to if passed in the US. And if it exposed publishers and developers to litigation because it's been passed in other countries? I don't think you'll find that developers would opt to modify the game for regional accessibility requirements - a more likely outcome is not seeing those games released in countries where a developer or publisher might face a lawsuit due to accommodations or lack thereof.


I could be wrong, but we aren't talking about a sector where the potential reward is worth the risk (oil, for example). We're talking about an industry where the margins are already so thin that developers want to go to war over used game sales. Forcing additional expense onto them in the form of regionalizing games for not just content but accessibility accommodations which will require removing game sections or recoding them is likely to make them not develop for that territory.


I hope my response provides you with some insight about how things are here and the challenges such legislation would face as a result, much as your email provided me with interesting information about the accessibility climate in the UK.



Be well.



--------------------------------------------------------------------------------
From: Ian Hamilton <i_h at hotmail.com>
To: games_access at igda.org; puckett101 at yahoo.com 
Sent: Sunday, June 24, 2012 7:51 PM
Subject: RE: games_access Digest, Vol 101, Issue 27



Hi Scott, good to hear from you, another UK reply for you - 




The thing is, the majority (115/196) of the countries in the world have now signed up to putting exactly that legislation in place, by ratifying the UNCRPD and recognising equal access to culture, recreation, leisure and sport as a basic right, which is obviously quite a significant step on from the ADA. Many countries already have the legislation in place, including the UK. Ours (the equalities act) incrementally came into effect between Oct 2010 and April 2011.




So for lots of us, rather than a question of if, the legislation is already here, so it's a question of when and in what circumstances litigation is beneficial and how best to handle it. When the point comes when there is such wide awareness and general good practice across the industry that it is actually useful (and that time categorically isn't now, all that can be achieved now is unfairly singling out people who don't know any better and generating lots of bad feeling and negative press in the process) the 'reasonable' thing will help enormously.




I can't in any way speak for the USA but that's how it works over here at least, there are no set criteria to work to that would ban the Wii or homogenise game mechanics, just governmental best practice recommendations for which standards and guidelines to work to (for web, it's BS8878 & WCAG). It's completely impossible to be sued for not being AA compliant. You can however be sued if there are adaptations you could have made but haven't, without any reasonable justification. 




For people with small budgets, cost is a reasonable justification, for web at least there certainly haven't been any small studios shutting up shop due to accessibility litigation fears. It's the same general sweeping law across every industry, and all types of discrimination (age/sex/race etc too).. non-compliance with standards is not illegal, but unreasonable inequality and discrimination is. 




Realistically litigation is extremely rare, when it does happen it's people / advocacy groups taking on large wealthy corporations who have absolutely no excuse and are deliberately dragging their heels. That approach has only started to work now that the sector is mature enough that organisations like that are the minority.




For the current state of the industry though, I completely agree with what you're saying. This in particular:




> > the free market
> > dictates that the accessible game will sell more copies than the one which
> > is less accessible because gamers who need accommodations will buy that
> > title. This is a radically simplified expression of the idea, but the basic
> > argument here is that people who need accommodations will buy the
> > accessible title, generating revenue for the company that made it, which in
> > turn encourages greater accessibility. Other developers will see that and
> > realize they can also make more money by providing accommodations and begin
> > doing so. 




There are other means of positive re-enforcement, AbleGamers' GOTY award for example is fantastic and we need to see things that brought across into mainstream awards such as BAFTA, but more than anything else, the above is what is needed to get publishers' interest, a concrete business case demonstrating the exact profitability involved is vital. That can only be achieved with analytics, that's what we all need to be pushing for alongside the usual developer advocacy / education. It's pretty much all that I seem to bang on about, so apologies, but it really is important. 




Even more important again in fact. A concrete business case has been the holy grail for accessibility in other industries too, but it's next to impossible to calculate an accurate one. Games however are uniquely positioned to do it one thanks to the kind of analytics that are not only possible but already standard practice. So if the concrete business case for accessibility can be established for games then that data can be used to back up efforts in industries too, meaning benefit for an incredible number of people, effects being felt across a much wider spectrum than just the games industry.




Ian






> From: games_access-request at igda.org
> Subject: games_access Digest, Vol 101, Issue 27
> To: games_access at igda.org
> Date: Sun, 24 Jun 2012 18:58:16 -0400
> 
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> than "Re: Contents of games_access digest..."
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> 
> Today's Topics:
> 
> 1. Re: suits about discrimination on the basisofdisability?
> (Steve Spohn)
> 
> 
> ----------------------------------------------------------------------
> 
> Message: 1
> Date: Sun, 24 Jun 2012 18:58:14 -0400
> From: Steve Spohn <steve at ablegamers.com>
> Subject: Re: [games_access] suits about discrimination on the
> basisofdisability?
> To: Scott Puckett <puckett101 at yahoo.com>
> Cc: Mark Barlet <mark at ablegamers.com>, IGDA Games Accessibility SIG
> Mailing List <games_access at igda.org>
> Message-ID:
> <CABrM+MU_vam_2La1U-vKBGkc2tzX_dYnQ+_48NnrSiBqGBkC-A at mail.gmail.com>
> Content-Type: text/plain; charset="iso-8859-1"
> 
> Here Here!
> 
> On Sun, Jun 24, 2012 at 5:56 PM, Scott Puckett <puckett101 at yahoo.com> wrote:
> 
> > I love getting dragged into things. Also, this is cutting into my
> > Metalocalypse viewing time, so I'll be brief (which generally means you
> > might want to take a bio-break before continuing).
> >
> > My professional background started in journalism and media, then went into
> > consulting, then tech consulting, then researching and developing network
> > infrastructure, then back to tech consulting and organizational change
> > management. My academic background includes a significant number of law
> > classes, primarily focused on constitutional law and gender law. My
> > disabilities prevented from attending law school, which is the only reason
> > I'm not throwing in a bunch of case citations here. My tech consulting
> > actually involved examining and advocating ADA compliance at the dawn of
> > the Web as we know it, and accessibility continued to be a theme in my
> > consulting practice even before I became disabled. Most people who pay
> > attention to such things know that if you design interfaces (Web sites,
> > whatever) for accessibility, a side effect of that is that they are often
> > vastly and measurably more usable by people who are not disabled. IIRC,
> > Jakob Nielsen wrote a fair bit about that, but it's been some years since I
> > paid much attention to that sort of thing. I'm not sharing this to say that
> > I'm some sort of Internet tough guy, I'm only mentioning these things - and
> > only the relevant parts - to establish my experience with this subject and
> > in this field, and to explain that it is both professional and academic
> > experience and expertise.
> >
> > So let's establish some ground rules here. Let's begin by assuming that we
> > are discussing games of equal quality and public interest. Think Call Of
> > Duty, Skyrim, Fallout 3, Battlefield 3, Red Dead Redemption, etc. Think
> > about the big selling titles that every gamer knows about and which ship
> > lots of copies.
> >
> > Let's also remember that technology moves much faster than law does. When
> > I was doing my student teaching almost two decades ago, a kid asked me what
> > I thought of the Internet. I told him then that it would change everything
> > he knew. The law is still catching up to that. It always has to because
> > lawmakers first have to be aware of a technology, at which point they
> > typically start trying to regulate it (actually trying to understand it
> > comes later).
> >
> > With that in mind, let's begin looking at some reasons why legislating
> > accessibility in video games is a bad idea.
> >
> > 1. Free market
> > The typical conservative argument is that the market will solve
> > everything. This isn't too different from John Milton's marketplace of
> > ideas, but for purposes of this discussion, all we need to understand is
> > that, given two equally popular and interesting games, the free market
> > dictates that the accessible game will sell more copies than the one which
> > is less accessible because gamers who need accommodations will buy that
> > title. This is a radically simplified expression of the idea, but the basic
> > argument here is that people who need accommodations will buy the
> > accessible title, generating revenue for the company that made it, which in
> > turn encourages greater accessibility. Other developers will see that and
> > realize they can also make more money by providing accommodations and begin
> > doing so. Thus, the change occurs without need of legislation, regulation
> > or litigation, and is driven entirely by market forces. Now, I don't
> > believe the free market will solve everything, or even most things, but I
> > do believe that spreading the word about highly accessible games which
> > are also good - and that is a KEY point - will bring additional attention
> > to that game and result in positive reinforcement for the developer,
> > encouraging them to make more games that are more accessible. Everyone
> > likes to be told they're doing a good job. Positive reinforcement, from an
> > organizational change perspective, is the way to address this to realize
> > long-term benefits. Accessible games sell more, inaccessible games sell
> > less, the market rewards those who make their games accessible.
> >
> > 2. Reasonable accommodation
> > The U.S. government's summary of Title 3 of the ADA is pretty simple:
> >
> > "Public accommodations must comply with basic nondiscrimination
> > requirements that prohibit exclusion, segregation, and unequal treatment.
> > They also must comply with specific requirements related to architectural
> > standards for new and altered buildings; reasonable modifications to
> > policies, practices, and procedures; effective communication with people
> > with hearing, vision, or speech disabilities; and other access
> > requirements. Additionally, public accommodations must remove barriers in
> > existing buildings where it is easy to do so without much difficulty or
> > expense, given the public accommodation's resources." (
> > http://www.ada.gov/cguide.htm#anchor62335)
> >
> > There's also a pretty long list of what constitutes a public accommodation:
> >
> > "Public accommodations are private entities who own, lease, lease to, or
> > operate facilities such as restaurants, retail stores, hotels, movie
> > theaters, private schools, convention centers, doctors' offices, homeless
> > shelters, transportation depots, zoos, funeral homes, day care centers, and
> > recreation facilities including sports stadiums and fitness clubs."
> >
> > You'll notice that none of these things are video games.
> >
> > The Telecommunications Act (http://www.ada.gov/cguide.htm#anchor63109)
> > requires manufacturers of telco equipment (i.e. infrastructure) and
> > services (i.e. phone companies, etc.) "to ensure that such equipment and
> > services are accessible to and usable by persons with disabilities, if
> > readily achievable."
> >
> > This is likely where most ADA claims for video games would be made,
> > although it really only seems to apply to an MMO, if then, and possibly
> > multiplayer, although that might be a stretch.
> >
> > You mentioned "reasonably practicable access," so it seems UK law follows
> > a similar bent - focusing on what is both practical and reasonable, not what
> > is possible. It's possible to do lots of things - I seem to recall
> > sending a few folks to the moon a while back, but we haven't done it for a
> > lot people. More to the point, I recall reading an article about Left 4
> > Dead which indicated that the surround sound was so detailed that it
> > allowed someone who met the legal definition of blindness to play it, and
> > reasonably well. I'm reasonably sure that developers at Valve did not set
> > out to engineer the game's sound in such a way that blind folks could play
> > it, but it happened so it's possible. However, I'm not sure that it is
> > reasonable to attempt to legislate such an outcome.
> >
> > 3. Chilling effect
> > And that, not surprisingly, is where we come to the crux of the problem.
> > Legislating accessibility in video games will have a chilling effect. Suing
> > developers over accessibility seems like both a poorly-considered cash
> > grab, as well as something that has a chilling effect. Steve mentioned that
> > developers reduced the amount of communication or stopped it entirely for a
> > time after the SOE accessibility lawsuit. That's because litigation has a
> > chilling effect, and that's part of the point. Suing a slumlord and getting
> > a judgement which forces them to bring buildings up to code and assesses
> > punitive damages is intended to have a chilling effect, and make other
> > landlords fix things before they get sued. However, lawsuits are also a
> > form of intimidation intended to silence people, as the current mess with
> > The Oatmeal shows.
> >
> > The SOE suit used a very novel interpretation of a public accommodation
> > (for more on public accommodations, read this:
> > http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1090&context=dlj),
> > one which doesn't really seem to fit the ADA, even the telecommunications
> > part of it (and if you want to read more, here's the dismissal:
> > http://www.onpointnews.com/docs/Stern-v-Sony_MTD_order.pdf). Looking at
> > the actual case, and I looked at it pretty carefully, it didn't pass the
> > smell test. Simply put, reading the ADA in that way is not reasonable, nor
> > is it practical. It is, in fact, the very opposite of both reasonable and
> > practical and would have opened the floodgates for meritless litigation
> > that would likely have ended development of all but the most highly
> > capitalized (meaning really freaking expensive to make) titles, and
> > perhaps even those.
> >
> > It would, in short, have had a long-term chilling effect on development,
> > and actually did have a short-term chilling effect on communication between
> > advocacy groups and developers. This is because developers didn't know how
> > that case was going to shake out, and didn't want to say or write or
> > communicate anything in any way that might later be used against them. For
> > the record, from an organizational change perspective, this is exactly how not
> > to create positive and lasting change. From a legal standpoint, this is
> > not, in fact, something that's up for debate - this is exactly what
> > lawsuits do. It's what they're intended to do. It is, in fact, their
> > entire point and reason for existence. (And, just in case you'd like to
> > debate that point, I have direct experience with this matter from my
> > journalism days, when I was sued for libel while other news outlets
> > reporting on the same events were not, likely due to the individual's
> > perception that I likely didn't have a law firm standing at the ready. What
> > he found was worse - a journalist with an actual background in
> > constitutional law. I represented myself. It was fun. And he dropped the
> > case pretty quickly.)
> >
> > 4. The Harrison Bergeron effect
> > This is the sad part. I believe you mean well. I believe you have good
> > intentions, even though I've never met nor talked with you. The problem is
> > that I also believe that your view is remarkably short-sighted. Since you
> > aren't in or from the US, I can forgive your remarkably oversimplified
> > analysis of anti-discrimination laws, because you weren't here, and may not
> > have even been alive for them. However, one of my degrees is in American
> > Studies, and I've spent a lot of time in the South so, again, I have both
> > practical and academic experience in this matter. The simple fact is that
> > the laws changed nothing. The National Guard had to take kids to school.
> > Civil rights marchers had firehoses and attack dogs loosed on them by law
> > enforcement. And this is AFTER the laws were passed at a federal level. And
> > that history extends back to the end of the Civil War. The Jim Crow-era
> > legislation you're mentioning was just the latest in a long string of
> > indignities, and it required the federal government to implement federal
> > law at gunpoint, and the federal government still, to this very day, has
> > to step in from time to time. In short, it's not as nice or easy as you
> > seem to think it is. A lot of people died, and diminishing their sacrifice
> > by comparing people who sought the right to vote without being clubbed to
> > death or torn apart by dogs to people who are frustrated because a video
> > game doesn't have a particular feature set is offensive and insulting on
> > its face.
> >
> > But, again, you aren't from here and you weren't there, so I'll forgive
> > your ignorance of American history. It's not like I could engage you in a
> > discussion about the Profumo affair, or the Wars of the Roses, or the
> > Battle Of Hastings.
> >
> > With that said, the Harrison Bergeron effect is the most critical reason
> > we don't want legislation dragged in. If a government passes legislation,
> > that legislation will cause litigation as people try to figure out what it
> > means, or push to have it mean something that it may not. Some of this
> > litigation will have merit; most will not and will, instead, be an attempt
> > for an attorney to pay off student loans or cash in with a big win (see the
> > comments about chilling effects above). Developers will hire accessibility
> > experts (which would not be a terrible thing), and have attorneys involved
> > in game design to reduce the risk of litigation at launch (which would be a
> > terrible thing). Only larger developers will be able to afford this -
> > smaller developers will likely just stop because it's expensive to defend
> > against lawsuits, and recovering legal fees in the wake of a failed suit is
> > a nightmare. There's nothing that would distinguish between meritless and
> > valid suits, nor prevent the meritless suits, and smaller developers would
> > likely quit before they started incurring fees they couldn't afford. By the
> > time all of that settled down to a normal level (which means the boundaries
> > would have been defined, people would know what they had to do to avoid a
> > meritorious suit, etc.), the only developers left would be Activision, EA,
> > Bethesda, etc. We'd lose games like Minecraft and Fez and Limbo. We'd lose
> > games which are at the forefront of any discussion about whether games are
> > art.
> >
> > And even then, the meritless litigation wouldn't stop - you'd still see
> > people trying to think of novel interpretations, i.e. Stern. Vs. Sony
> > Online. Developers would still have to follow those same policies.
> >
> > And the outcome would be terribly boring games. If every single game had
> > to adhere to a specific list of accommodations, they would all look a lot
> > alike. They'd have the same features and puzzles, and regardless of how
> > much I hate quick-time events, I don't think that someone who loves them
> > should be denied those events, and the outcome of legislating accessibility
> > in gaming would likely include losing that feature, among others.
> >
> > Let's be really blunt here.
> >
> > Being disabled isn't fun. I can't run. I can't pick up my little girl and
> > give her a piggyback ride. Walking is tough a lot of the time. I deal with
> > it, because that's what I do, but I wouldn't wish this on anyone I know.
> > But I don't get jealous of Usain Bolt. I don't get mad because another
> > father can roughhouse with their kid. I don't wish that people who can walk
> > just fine had to slow down or use a cane or walker. I don't, in short,
> > expect that other people have to have limitations because I do, nor do I
> > think that it's somehow inherently desirable to make every game playable by
> > everyone. My disabilities prevent me from playing any game on the Wii, or
> > any game that uses motion (i.e. Kinect, Move, SIXAXIS controls, etc.).
> > Legislating accessibility for me would mean banning the Wii, the Move and
> > Kinect control systems, and SIXAXIS. I think we can all agree that such an
> > idea is patently absurd.
> >
> > The simple fact of the matter is that accommodating a disability must be a
> > reasonable accommodation. While some developers are actively trying to make
> > games for blind folk and I think that's great, trying to make Battlefield 3
> > accessible for the blind would be a development nightmare. Likewise, I
> > think any developer who fails to include subtitles at this point is an
> > absolute idiot. The solution lies somewhere between those polar examples,
> > but we can only find those reasonable and practical accommodations through
> > innovation and collaboration, partly because what video games are now is
> > something new and we're learning more about what they work and how to make
> > them accessible every day. The innovation and flexibility in a controller
> > scheme like the one in "Resistance: Fall Of Man" is fantastic and I wish
> > more developers would use it, but legislating that means that developers
> > would ONLY do that and wouldn't take a risk on perhaps figuring out
> > something that worked better.
> >
> > My time in tech taught me a lot, but one of the biggest lessons I learned
> > is that innovation results from having a problem and needing to fix it.
> > That's where Evil Controllers shines, and three of the folks I game with
> > have a one-handed controller. It doesn't matter to them whether a game is
> > natively accessible to players with use of only one hand, because they
> > already solved the problem. Likewise, there's another guy who can't really
> > use thumbsticks on a standard controller, so he molded his own joysticks so
> > he didn't have that problem anymore.
> >
> > When people try to legislate technology, what they often overlook is that
> > technology will, given a sufficient timeline, innovate its own solutions to
> > its own problems. Individuals will create new things to mitigate problems.
> > Legislating things like accessibility ensures that we lose that innovation
> > because people simply don't have to think about it anymore, and so they
> > don't. They implement exactly what the law says they have to, and then they
> > don't think about it again.
> >
> > So.
> >
> > Litigation for gaming accessibility is bad. It's perhaps the single worst
> > way to handle it.
> >
> > But legislating gaming accessibility runs a very close second.
> >
> > I want developers to do this stuff and get it right. It's why, any time
> > I'm face to face with someone doing this stuff, I talk to them about it
> > with specific, concrete examples of how they can implement things to
> > improve accessibility without taking away from gameplay.
> >
> > But we also need to remember how inherently individual disability actually
> > is, and how a single solution may not work for two people, even if they
> > have the same disability condition. Legislation is one size fits all. Me?
> > I'd rather see the developers innovate flexible new solutions, and it's
> > important to note that this is happening. It's happening right now. It was
> > in L.A. Noire, and it's in Max Payne 3. It's in MLB The Show 2011, which is
> > the first baseball game I know of that subtitled the announcers'
> > play-by-play. It's happening right now, and without regulation or
> > legislation.
> >
> > So no, I don't think we need it. I think it would make things remarkably
> > worse, and more boring, and that we'd hate the result. But hey, what do I
> > know? I just did this stuff as part of my professional career for the best
> > part of two decades and in several separate sectors subject to significant
> > federal oversight (real estate, finance, insurance, etc.). I just watched
> > people go to work every day and solve intractable problems and generate
> > mind-melting tech as a result. I'm just looking at what developers are
> > actively doing right now and seeing that this change is happening without
> > legislation or regulation, and that regulation, legislation and litigation
> > aren't necessary.
> >
> > It isn't as fast as I'd like, but sustainable change doesn't happen
> > quickly. It takes time, and people have to adjust to it, and learn a new
> > way of thinking and doing. But once they've done that, they don't forget
> > it, and it becomes part of what they do.
> >
> > And that's where we are right now.
> >
> > Like I said at the beginning, take a bio-break before reading.
> >
> > It's not my fault if you didn't listen ;)
> >
> > Regards and other such things.
> >






--------------------------------------------------------------------------------


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